DATE: Friday, June 20, 1997                 TAG: 9706200721

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY LAURA LaFAY, STAFF WRITER 

                                            LENGTH:   86 lines

HIGH COURT UPHOLDS O'DELL DEATH SENTENCE HE CLAIMED JURORS SHOULD HAVE BEEN TOLD LIFE TERM WOULD HAVE MEANT NO PAROLE.

Joseph Roger O'Dell, the condemned Virginia Beach murderer whose supporters include Pope John Paul II, the Italian parliament and famed death row nun Helen Prejean, got a fair trial and should die for his crime, the U.S. Supreme Court ruled Thursday.

The justices ruled 5-4 that O'Dell is not entitled to a new sentencing based on his claim that jurors might have sentenced him to life instead of death had they known he would never get out of prison.

O'Dell, a 54-year-old Roanoke native who grew up in Norfolk's Ocean View, had convictions for both murder and assault under his belt when he was sentenced to death in 1986 for the capital murder, rape and sodomy of a Virginia Beach woman.

Although the prior convictions would have rendered him ineligible for parole, O'Dell was not permitted to inform his jury of that fact. The prosecution, meanwhile, argued that he should get the death penalty because he was a future danger to society.

Eight years after O'Dell's conviction, the U.S. Supreme Court decided ``Simmons vs. South Carolina,'' establishing that criminal defendants have the right to counteract prosecutorial claims of future dangerousness with information about their ineligibility for parole.

O'Dell has pointed to Simmons in appeals, arguing that the ruling should apply retroactively to his case. In 1992, a U.S. District Court judge in Richmond agreed and ordered a new sentencing. That order was thrown out in a narrow decision by the U.S. Court of Appeals for the 4th Circuit last year.

Thursday's equally narrow decision by the U.S. Supreme Court puts the issue of retroactivity to rest.

Writing for the majority, Justice Clarence Thomas declared that the Simmons case announced a ``new rule.'' Under court doctrine, new rules cannot be applied retroactively.

Justices John Paul Stevens, Ruth Bader Ginsburg, Steven Breyer and David Souter dissented. Even if Simmons is a new rule, wrote Stevens, the issue ``is of such importance to the accuracy and fairness of a capital sentencing proceeding that it should be applied consistently to all prisoners whose death sentences were imposed.''

Also on appeal, O'Dell has argued that DNA tests performed since his trial on bloodstains from his shirt and jacket prove that he is innocent.

That claim prompted the pope to call for clemency in the case in December - days before O'Dell was scheduled to die in Virginia's electric chair.

The pope's petition captured the imagination of the Italian public, which bombarded Gov. George F. Allen's office with pleas for clemency. When, on Dec. 18, the Supreme Court stopped O'Dell's execution, both houses of the Italian parliament stood up and cheered. O'Dell's girlfriend later toured Italy and was celebrated there as a romantic heroine.

The U.S. Supreme Court refused to hear O'Dell's innocence claim, and lower courts have discounted it. O'Dell, however, has not given up.

On June 12, one of his lawyers asked Virginia Beach Circuit Judge Frederick B. Lowe to allow new DNA testing of vaginal and anal swabs taken from the victim, 44-year-old Helen Schartner.

``It might prove his innocence or it might prove his guilt. Either way, how can you lose?'' the lawyer, Andrew R. Sebok of Norfolk, said Thursday.

``The vaginal and anal swabs will exonerate me,'' O'Dell insisted in a telephone interview Thursday.

``From the beginning they would have exonerated me. Wouldn't I be nuts? Wouldn't I be crazy to say that if I was wrong?

``I need a chance. One chance. I'm only asking for one chance. If the state of Virginia wants to kill me, kill me on evidence that's true. Don't kill me on evidence that's a lie.''

If Lowe allows the testing and the results exclude O'Dell as a contributor, O'Dell could then seek permission from the U.S. Court of Appeals for the 4th Circuit to ask for another review from the U.S. Supreme Court. He could also cite the results in a petition for clemency to Gov. Allen.

Lowe has promised a decision in the matter this week.

Virginia Beach Commonwealth's Attorney Robert Humphreys, meanwhile, said he plans to ask the court today to set an execution date for O'Dell. As far as Humphreys is concerned, O'Dell's request for more DNA testing is ``a delaying tactic.''

``Up to and including his last breath, I expect Joe O'Dell will be trying to find some new angle and keep working it,'' said Humphreys.

``O'Dell is a con man from way back, and I don't think that will stop until there is no more Joe O'Dell.''

http://www.pilotonline.com ILLUSTRATION: Color photo

Joseph O'Dell has been supported in his fight for life by the pope

and Italian lawmakers. KEYWORDS: CAPITAL PUNISHMENT VIRGINIA U.S. SUPREME COURT

MURDER SENTENCING

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